Plaintiff (Law Firm Lee & Lee, Attorneys Kim Jae-mun, Counsel for the plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Lee Hun-hoon et al., Counsel for defendant-appellant)

November 30, 2018

1. The defendant shall pay to the plaintiff 35,471,190 won with 5% interest per annum from April 15, 2017 to January 18, 2019, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 1) 754,810,179 won with 15% interest per annum from April 15, 2017 to the day of full payment.

1. Basic facts

A. Status of the parties

1) On September 20, 2006, the Plaintiff and the Defendant completed the registration of transfer of ownership of 1/2 shares with respect to (location omitted) 1,275.4 square meters and accommodation facilities of 13 stories above ground and 13 stories above ○○○, hotel facilities, (number 1 omitted), (number 1 omitted), 417.9 square meters above (number 2 omitted), (number 2 omitted), and (number 417.5 square meters below (hereinafter “instant land and buildings”), respectively, and owned the ownership of 1/2 shares.

2) On December 27, 2016, the Plaintiff completed the registration of ownership transfer on the Defendant’s title 1/2 shares with respect to the instant real estate, and became a sole owner of the instant real estate.

3) Nonparty 2 arranged to arrange for the trading, brokerage, loan brokerage, business, etc. of hotels, etc., and participated in the operation and management of the Plaintiff and the Defendant’s real estate acquisition, ○○○ hotel located in the instant real estate, and subsequently, was involved in the operation and management of ○○ hotel located in the instant real estate.

B. The grounds for concluding and cancelling a sales contract with Nonparty 1

1) On May 8, 2013, the Plaintiff and the Defendant concluded a contract with Nonparty 1 to sell all of the corporeal movables, such as the instant real estate and the instant ○○○ hotel’s various facilities, fixtures, etc. in total at KRW 11,250,00,000 (hereinafter “instant sales contract”). The down payment paid pursuant to the instant sales contract was KRW 500,000,000 on May 8, 2013, and the down payment paid pursuant to the instant sales contract was KRW 625,00,000 on May 31, 2013 (hereinafter “the first down payment”; and “the second down payment”; and “the instant down payment” collectively referred to as “the instant down payment”).

2) Since then, there was a dispute between Nonparty 1, the Plaintiff, and the Defendant on October 30, 2013 with regard to the time when the provisional attachment registration and provisional registration, which was completed, was cancelled, and Nonparty 1 filed a lawsuit claiming the return of the down payment paid by Nonparty 1 (Seoul Central District Court 2013Gahap551810) by asserting that the instant sales contract had been cancelled due to the delay in the performance of the Plaintiff and the Defendant with the Plaintiff and the Defendant as the other party (Seoul Central District Court 2013Gahap51810). The above court rendered a judgment dismissing Nonparty 1’s claim, and both Nonparty 1’s appeal and appeal were dismissed, and the said judgment became final and conclusive (hereinafter “the first return lawsuit”).

3) On September 2015, Nonparty 1 filed a lawsuit claiming the return of the instant down payment, claiming that the instant sales contract had been rescinded as the Plaintiff and the Defendant’s non-performance refusal (Seoul Central District Court Decision 2015Gahap571818). On June 17, 2016, the said court rendered a judgment ordering the Defendant to jointly pay KRW 1,125,000,000 to Nonparty 1 as well as legal interest thereon and delay damages, and the appeal against the judgment was dismissed and finalized (Seoul High Court Decision 2016Na2046275, Supreme Court Decision 2017Da29024, hereinafter “second return lawsuit”).

4) On June 21, 2016, Nonparty 1 applied for a compulsory auction on the instant real estate based on the executory exemplification of the judgment with the executory power of the second return lawsuit (Ywon District Court Decision 2016 Masan Branch.52817).

C. The plaintiff's down payment return and the withdrawal of the auction by the non-party 1

1) On December 27, 2016, the Plaintiff became a sole owner of the instant real estate, as described in the foregoing paragraph (a)(2). As to the instant down payment of KRW 1,125,00,000, and damages for delay incurred until the payment was made, the Plaintiff remitted KRW 1,509,157,841, and KRW 462,518, April 14, 2017 to the account in the name of Nonparty 1 (hereinafter “the instant payment”).

2) On April 13, 2017, Nonparty 1 received the withdrawal of the above auction procedure.

Each entry and whole purport of pleading (including a branch number if there is no dispute; hereinafter the same shall apply) with Gap's 1 through 8, 11, 12, and 13

2. Summary of the parties’ assertion

A. The plaintiff

The second return lawsuit held that the Plaintiff and the Defendant’s obligation to return the down payment of this case were indivisible, and the Plaintiff and the Defendant shared each share of 1/2 of the instant real estate and received each of the down payment of this case 1/2, and thus the internal share ratio between the Plaintiff and the Defendant and the Defendant should be recognized as 1/2. In other words, the Plaintiff received only 1/2 of the down payment of this case paid by Nonparty 1, and the remainder by the Defendant Nonparty 2. On April 13, 2017 and April 14, 2017, the Plaintiff paid 1,509,620,359 won to Nonparty 1 as the sum of the down payment of this case to the Plaintiff and the Defendant, and thus, the Plaintiff is entitled to exercise the right to indemnity against the Defendant’s share.

Therefore, the defendant is obligated to pay to the plaintiff the amount equivalent to 1/2 of the defendant's share of the payment of this case and damages for delay.

B. Defendant

In the event that several persons are liable for an indivisible obligation, the portion to be borne shall be determined according to the ratio of the indivisible obligor’s profit. Nonparty 1 delivered KRW 500,000,000 to Nonparty 2, and thereafter Nonparty 2 paid the Plaintiff the total amount of KRW 500,000 to Nonparty 2. In addition, Nonparty 2, who arranged the instant sales contract, did not notify the Defendant of the secondary down payment date and place of the payment date, was not present at the Defendant, and the Plaintiff received all the secondary down payment. In other words, since the instant down payment was received by the Plaintiff, there is no part that the Defendant bears in relation to the instant payment.

3. Determination

A. Relevant legal principles and issues

1) According to the above basic facts, the sales contract of this case does not merely trade the real estate of this case, but all business activities including business rights, corporeal movables, etc. of ○○○○ hotel. Therefore, it is reasonable to deem that the ownership transfer obligation and payment obligation as to the co-ownership of the real estate of this case are also indivisible. Therefore, the obligation to return the down payment of this case, which is the obligation of the plaintiff and the defendant to recover due to the cancellation of the sales contract of this case, constitutes an indivisible obligation.

2) When one of the obligors jointly and severally liable has made the repayment or other joint discharge at his own expense, the portion to be borne by the other obligors shall be presumed to be equal, but if there exists a special agreement on the portion to be borne by the obligors, or if the profit ratio of each obligor is different in relation to the bearing of the obligation without any special agreement, the portion to be borne by the obligor shall be determined according to such special agreement or ratio (see Supreme Court Decision 2013Da49404, 49411, August 26, 2014). Such a legal doctrine applies mutatis mutandis to the case where several of the obligors assume an indivisible obligation (see Article 411 of the Civil Act). Therefore, in order to determine the portion to be jointly borne by the Plaintiff and the Defendant, who is an indivisible obligor, as to the obligation to return the down payment of this case, the main body to receive the down payment of this case

(b) Fact of recognition;

The following facts may be acknowledged in full view of the following facts: there is no dispute between the parties; there is evidence as above; evidence Nos. 14, 15; and evidence No. 1, 2, 3, 8, and 9; and the purport of the whole pleadings.

1) The Plaintiff and the Defendant jointly won the instant real estate on August 11, 2006 and completed the registration of ownership transfer on September 29, 2006, respectively.

2) Around May 2013, the Defendant: (a) received a request from Nonparty 2 to Nonparty 1 to submit documents necessary to sell the instant real estate in KRW 11.2 billion; and (b) on May 7, 2013, the Defendant drafted to Nonparty 2 a letter of commitment stating that “I, from among the Defendant’s shares in the instant real estate, I actually own the shares of Nonparty 2, and I have promised to delegate all the powers to Nonparty 2. In the event of sale in KRW 1.2 billion, I have promised to sell the instant real estate in KRW 2.59 billion, as well as KRW 3 billion, to Nonparty 2 (hereinafter “instant letter of commitment”).

3) On May 8, 2013, the following day, the sales contract of this case was prepared in the name of the Plaintiff, the Defendant, and Nonparty 1, the sales price of which is KRW 11,250,000,000, and Nonparty 1 paid the instant down payment. 4) A receipt (Evidence A7) drawn up in relation to the first down payment is indicated as follows: (i) May 8, 2015; and (ii) “Plaintiff, Nonparty 1, Defendant, and Nonparty 2”; and (iii) a receipt (Evidence A No. 8) drawn up in relation to the second down payment is indicated as “Plaintiff, Nonparty 1,” and “Plaintiff, and Nonparty 1,” respectively.

5) On February 9, 2018, the Plaintiff asserted that “the Plaintiff has a claim of KRW 1,300,000,000 against Nonparty 2, and Nonparty 2 has a claim of KRW 1,30,000,000 against the Defendant.” Nonparty 2 claimed the payment of KRW 1,30,000,000 by subrogation of Nonparty 2 (Seoul Central District Court Decision 2017Da504928). The above court rendered a judgment dismissing the Plaintiff’s claim on February 9, 2018, and the appellate court (Seoul High Court Decision 2018Na2017288) appealed, but the said judgment became final and conclusive (hereinafter “prior subrogation lawsuit”).

C. Determination on each of the parties receiving the down payment of this case

1) In a civil trial, even though it is not bound by the facts recognized in a judgment on other civil cases, etc., the facts established in the relevant civil case which has already been established shall be valuable evidence unless there are special circumstances, and it shall not be rejected without reasonable grounds (see Supreme Court Decision 2008Da92312, 92329, Sept. 24, 2009).

2) In light of the above legal principles, in light of the following facts and circumstances, it may be recognized that the Plaintiff received KRW 500,000,00 from the first down payment, Nonparty 2, and Nonparty 625,00,000, based on comprehensive consideration of the facts and circumstances that can be recognized in light of the aforementioned facts and the purport of the entire arguments and evidence as seen earlier. On the contrary, the Plaintiff’s assertion that the Plaintiff and the Defendant (the Defendant or Nonparty 2 through the Defendant or Nonparty 2) received each one half of the down payment, or all the Defendant’s assertion that all the instant down payment was received by the Plaintiff is rejected.

① According to the Plaintiff’s claim against Nonparty 2 and Nonparty 2’s claim against the Defendant in the previous subrogation lawsuit, the appellate court acknowledged that “The KRW 500,000,000 for the instant real estate was the purchase date and the Plaintiff and the Defendant ( Nonparty 2, who received the said money as the Defendant’s representative, prepared a receipt to Nonparty 1) on May 31, 2013,” and that the said judgment became final and conclusive. In light of the foregoing legal doctrine, the facts recognized in the relevant civil case established in light of the aforementioned legal doctrine are valuable evidence, and there was no assertion and proof as to the special circumstances to be otherwise recognized.

② If the party’s genuine intent is not known in interpreting the declaration of intention, the element of the declaration of intention is an effective intention inferred from the act of expression, i.e., the intention to be inferred from the act of expression, i.e., the in-depth effect, and thus, it is reasonable to interpret it with the intention inferred from the act of externally expressed rather than the party’s internal intent (see Supreme Court Decision 2002Da23482, Jun. 28, 2002). Nonparty 2 entered into the instant sales contract on May 8, 2013, following the date when the letter of promise was received, and received the first down payment with the Plaintiff. The text of the instant declaration can be seen to the effect that the Defendant, a registered titleholder of the real estate share, sells the real estate in this case to Nonparty 1, expressed externally the intention to verify that some of the proceeds from the disposal of the share in this case belongs to Nonparty 2.

③ Thus, it can be deemed that Nonparty 2 received the first down payment, which is part of the purchase price of this case, as the delegated agent, and the receipt for the first down payment is written in the name of Nonparty 2, and that Nonparty 2 received the said money from the Plaintiff and Nonparty 2 as the Defendant’s agent. As Nonparty 2 received the said money as the Plaintiff and Nonparty 2’s agent, it can be deemed that Nonparty 2 received the said money. The first down payment is recognized that the Plaintiff and Defendant (Nonindicted 2 received it as the Defendant’s agent) received the said money. Even if the instant contract was rescinded later and the contract was determined as stipulated in the instant promise, it cannot be said that there is a reason to determine differently the rate of the first down payment and the return rate in relation to the Plaintiff, a joint seller, apart from Nonparty 2 and the Defendant.

④ As to the specific delivery process of the second down payment, the Plaintiff asserted that “Nonindicted 2, who is the agent of the Plaintiff and the Defendant, attended, and Nonparty 1 paid the second down payment during the attendance of the Plaintiff and Nonparty 2 and received only 1/20,000 of the Plaintiff.” The Defendant asserted that the Plaintiff was fully paid the down payment. However, there is a difference between the first down payment, which was made upon the payment of the second down payment, and the name of the Plaintiff, and the signature of the Defendant and Nonparty 2, and there was a judgment that “Nonindicted 1 delivered all the second down payment to the Plaintiff” in the first return lawsuit as well as the prior subrogation lawsuit, it is insufficient to deem that the Plaintiff’s assertion and submission evidence alone proves that there was a special circumstance to deem that each of the above final judgment and the facts should be recognized differently, and there is no evidence otherwise.

⑤ On the other hand, the Plaintiff asserted that the share ratio was 1/2 as it judged that the obligation to return the down payment in the second return lawsuit was an indivisible obligation. However, in this case, the specific defendant's share ratio, i.e., profit ratio, under the premise that the obligation to return the down payment in this case is an indivisible obligation, and the second return lawsuit does not determine and determine the specific share ratio in addition to the indivisible obligation. Therefore, the Plaintiff's assertion on the other premise cannot be accepted.

D. Determination on the return rate of the down payment of this case

1) In light of the legal principles as seen earlier, the first down payment received by the Plaintiff and the Defendant (excluding Nonparty 2) and the Plaintiff received 1/2 of them. From September 2006 to September 2006, the Plaintiff and the Defendant were the registration titleholder for 1/2 of each of the instant real estate from the instant provisional registration to the date the Plaintiff’s sole ownership transfer registration is completed, and the same was at the time of the conclusion of the instant sales contract, barring special circumstances, it is reasonable to deem that the right holder of real estate has the equivalent rights and obligations as to the real estate, and that the share share ratio of indivisible obligation is presumed to be equal, and as seen earlier, the share ratio of the first down payment is presumed to have been received by the Plaintiff and the Defendant. Nevertheless, considering the fact that it is insufficient to recognize the Defendant’s assertion that the Defendant did not take profits from the first down payment, the proportion of the Plaintiff and the Defendant’s profits from which the first down payment was received is equal, and thus, the internal share ratio becomes equal.

2) Next, in the case of the second down payment, since it is reasonable to deem that the Plaintiff received the second down payment, it is insufficient to recognize the Plaintiff’s assertion and evidence alone as to whether the second down payment was received by the Defendant, and there is no other evidence.

3) Therefore, according to the internal ratio of the Plaintiff and the Defendant’s internal ratio of 875,00,000,000 won in the case of the Plaintiff according to its profit ratio of KRW 1,125,125,00,000 in the case of the Plaintiff ( = the total amount of the instant down payment of KRW 1,125,00,000 in the case of the Plaintiff’s total amount of KRW 1,250,000 in the first down payment of KRW 250,000 in the case of the Plaintiff’s profits, and the ratio of KRW 625,000 in the second down payment of KRW 625,00 in the case of the Defendant’s amount of KRW 250,000 in the case of the Defendant’s amount of KRW 1,25,005,00 in the case of the instant down payment of KRW 1,25,000 in the case of the Defendant’s profits, each ratio of KRW 1500,00000 in the Defendant’s.

E. Sub-committee

According to the internal apportionment ratio between the plaintiff and the defendant, the defendant is obligated to pay to the plaintiff 35,471,190 won [=1,509,620,359 won x (250,000,000/1, 125,000,00 won) x (250,000/1, 125,000) x below the won] and the above amount which are corresponding to the part of the defendant's burden to the plaintiff as of the date of the plaintiff's final repayment. As of April 15, 2017, the defendant raised a dispute about the existence and scope of the defendant's obligation from April 15, 2017 to January 18, 2019, and damages for delay calculated by 15% per annum under the Civil Act and from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-jin (Presiding Judge)

(1) The Plaintiff sought payment of KRW 754,810,795 and damages for delay, which constitute 1/2 of the total amount paid by the Plaintiff, and KRW 1,509,620,359 (No. 3-2 of the evidence No. 1, 2 of the evidence No. 3-2 of the evidence No. 754,810,795 and damages for delay. However, since the amount of KRW 1/2 is KRW 754,810,179 and the corresponding part of the grounds for the claim and the payment order of the instant case are